September 24, 2009

The plays of William Shakespeare hardly ignore the topic of law. Yet most of the time when the legal lens gets pointed at the works of the Bard, they focus on the more explicitly judicial pieces, such as The Merchant of Venice or Measure for Measure. Working off of Chicago's 2009 Law and Shakespeare conference, however, Professor Richard McAdams presented a new paper at the tail end of the season's WIP talks on why Othello has far more to say about law and legal concepts that perhaps previously recognized. Showing both the benefits and shortcomings of resorting to the legal process, Shakespeare presents a nuanced and ambivalent perspective on law's overall utility.

The play is book-ended by two opportunities to use the legal process to avert an injustice. At the start of the play, Othello stands accused by Brabantio of taking his daughter Desdemona by force or fraud. Iago is the mastermind behind this misconception, stoking mistrust between the two and seeking to provoke street violence. However, at the critical moment Brabantio decides to divert the matter to a legal proceeding, which allows (through Othello and Desdemona's testimony) for Othello's exoneration.

By contrast, the play concludes with Othello serving as judge, jury, and executioner after accusing Desdemona of adultery with Cassio (again, a mistake fostered by Iago). In contrast the first Act, where Othello is vindicated by virtue of procedural rights, he flatly refuses to grant Desdemona any, including a rejection of her plea to call Cassio as a witness. The tragedy of Desdemona's death, after all, could have been averted the same way that Othello was freed -- through exculpatory witness testimony. Yet Othello, by choosing the path of private vengeance rather than public law, sowed his own bitter harvest, wrongfully killing his wife and love.

So at this level, Othello takes a significantly more positive view of law than many other Shakespearean works. Yet, in another sense, law is actually a dramatic failure in Othello--it provides virtually no recourse against the generally recognized true villain: Iago. Not only that, but this failing is one that drives several significant plot choices Shakespeare makes that cast light on otherwise seemingly odd authorial decisions.

Othello is generally considered to be a tragic figure, not a villain. The true evildoer in the play is the manipulator behind the scenes: Iago. While many debate whether or not Othello should truly be considered culpable for the killing of Desdemona, few dispute the depravity of the man who consistently provoked Othello by feeding him false information about Desdemona's infidelity.

Yet it proves surprisingly difficult to find a legal theory which would let charges stick on Iago. By contrast, he appears to have carefully calibrated his participation in order to minimize his legal exposure. In the England of 1600, conspiracy liability did not exist as it does today, leaving a hypothetical prosecutor only with accomplice liability. Moreover, because Iago was not present for Desdemona's killing (even constructively, such as by standing as a lookout), he can only be charged with being an accomplice before the fact--someone who aided or encouraged the commission of the crime, but was not present for its commission.

Securing even this liability proves surprisingly difficult. Though the text of the play provides repeated examples of what seem obvious examples of Iago "encouraging" Othello to kill his wife, in actuality Iago is for the most part quite careful with his words. While he tells tales calculated to stir Othello's ire--tales that are intended to provoke him to murder--until very late in the day Iago does not actually specifically endorse killing Desdemona. It is only towards the very end, when Othello informs Iago that he is planning to poison Desdemona, that Iago crosses the line by telling him to "Do it not with poison, strangle her in her bed." Though it is an open question, it is quite possible that without that critical line, the absence of an explicit endorsement would have shielded Iago from culpability.

So why did Iago make this seeming misstep, advising strangulation instead of poison? The answer again lies in the scope of his legal liability. During Shakespeare's time, an accomplice can only be charged with a crime that the principal was convicted of. Killing someone by poison is murder as a matter of law--it is in itself proof of an intent to kill. By contrast, strangulation leaves upon the possibility that Othello could only be convicted of manslaughter -- a killing that occurred during a "sudden occasion". Though the audience knows that it is difficult to call Othello's killing sudden (what with the brooding and the dialogue with Desdemona), it is quite possible that a jury without our God's-eye view could be convinced that Othello killed Desdemona in the heat of anger upon learning of her adultery.

For Iago, this is an absolute bar to being convicted of murder, even though he clearly did premeditate the killing, because he cannot be charged with a more serious crime than what Othello is convicted of (similar logic would shield Iago from a potential charge of petty treason). Indeed, it may get him off entirely scot-free--for there appears to be no record of any contemporary law encompassing the category of accessory before the fact for sudden manslaughter. The not unreasonable logic is that if there was time for the instigator to leave the scene prior to the killing, then the killing wasn't actually all that sudden. Reasonable as that sounds in abstract, here it would probably let Iago off.

But even if none of that logic flies, Iago has yet another bullet in the chamber. As noted above, the accomplice can not be charged with more than the principal is convicted of. But Othello is neither charged nor convicted of anything, for the simple reason that he committed suicide after learning of his mistake. Since the law does not allow a dead man to be convicted, there is no principal liability and thus no accomplice liability. Iago has, in a sense, committed the perfect crime.